September 20, 2010

This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:

The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison. Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.

McCroskey, who could have faced the death penalty, was sentenced to life in prison. He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.

Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings. McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.

Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty. "What it really means is death in prison," Ennis said after the hearing. "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."

Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible. "He's left families without their loved ones," Bowen said. "There are four people dead here. He's not proud of that." He said McCroskey is remorseful and has contemplated the severity of what he did.

A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure." They also thanked police and everyone who supported them. "We have endured a tragedy of unspeakable proportion," the statement reads. "We are relieved that justice has been done. While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."

In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case. And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.

The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week. Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here). Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.

Comments

I'm opposed to the death penalty, but this troubles me a lot. The criminal justice system should vindicate the interests of the community, not those of particular victims. That's what civil courts are for.

Posted by: dm | Sep 20, 2010 8:39:50 PM

"Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle."

That's actually pretty easy: Not every murderer who deserves death gets it, and that fact of life doesn't entitle other murderers to a lesser punishment.

Posted by: federalist | Sep 20, 2010 10:06:55 PM

"...McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings."

When McGroskey get angry about some future prison incident, he will have absolute immunity for all subsequent murders if the lawyer has his way.

"When McGroskey get angry about some future prison incident, he will have absolute immunity for all subsequent murders if the lawyer has his way."

Not if THIS lawyer has his way.

Posted by: Bill Otis | Sep 20, 2010 11:05:31 PM

Bill: If you had more influence, I could relax a lot. You are not in the hierarchy unfortunately, or fortunately when they start to get their just deserts (strictly for utilitarian purposes, of course).

Doug - your comments, "I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case. And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.", demonstrate your apparent inability to separate the issues of ethics and law that are pertinent to the death penalty:
The law, in some states, allows for the consideration of a sentence of death for capital murder. That option, in ethical terms, only makes sense if there is an agreed uniformity of practice throughout, and an agreed (and strictly adhered to) definition of the absolute degree of criminal intent. The victims of the crime of murder are not the relatives. That is not to say that they have not suffered grievous loss, but their loss is qualitatively no greater than that of the loss suffered by relatives of those executed (or locked up for life). In ethical terms, the law should reflect only the minimum needs of society for protection. In practice, the law gives itself additional powers to exact "retribution" but these additional powers are abuses of human rights when they seek to destroy the rights and state of human dignity. The right to life is of course at the heart of that concept.
As an academic, you have a particular responsibility to ensure the ongoing debate amongst your students, and others who may be influenced by your analysis, about the interface of ethics and law. There would be greater confidence in your impartiality to do this if you did not question every incidence where "ethics" apparently make a rare victory. The emphasis of analysis should be the ethical considerations of this particular case, and their implications for the understanding of interface that advocates of the death penalty both proclaim yet deny.
I'm not sure I have explained myself as well I could wish, but I hope the likes of Bill will, for once, accept the limitations of necessary brevity. The question to answer is: should the law reflect exclusively the "political" will of any particular executive power, or should it be constrained and reflective of a more substantial ethical dimension?
Pro-death penalty advocates (and others) champion the separation of state and religion. Yet the ethical conscience of the state, many would argue, resides in religion. To separate, without an effective interface of negotiation and influence, is to emasculate the ability of society to form and practice a fair and just law. Pope John expressed this better than I can in a recent speech to parliamentary representatives in London a couple of days ago:
"Each generation, as it seeks to advance the common good, must ask anew: what are the requirements that governments may reasonably impose upon citizens, and how far do they extend? By appeal to what authority can moral dilemmas be resolved? These questions take us directly to the ethical foundations of civil discourse. If the moral principles underpinning the democratic process are themselves determined by nothing more solid than social consensus, then the fragility of the process becomes all too evident - herein lies the real challenge for democracy.

The inadequacy of pragmatic, short-term solutions to complex social and ethical problems has been illustrated all too clearly by the recent global financial crisis. There is widespread agreement that the lack of a solid ethical foundation for economic activity has contributed to the grave difficulties now being experienced by millions of people throughout the world. Just as “every economic decision has a moral consequence” (Caritas in Veritate, 37), so too in the political field, the ethical dimension of policy has far-reaching consequences that no government can afford to ignore. A positive illustration of this is found in one of the British Parliament’s particularly notable achievements – the abolition of the slave trade. The campaign that led to this landmark legislation was built upon firm ethical principles, rooted in the natural law, and it has made a contribution to civilization of which this nation may be justly proud.

The central question at issue, then, is this: where is the ethical foundation for political choices to be found? The Catholic tradition maintains that the objective norms governing right action are accessible to reason, prescinding from the content of revelation. According to this understanding, the role of religion in political debate is not so much to supply these norms, as if they could not be known by non-believers – still less to propose concrete political solutions, which would lie altogether outside the competence of religion – but rather to help purify and shed light upon the application of reason to the discovery of objective moral principles. This “corrective” role of religion vis-à-vis reason is not always welcomed, though, partly because distorted forms of religion, such as sectarianism and fundamentalism, can be seen to create serious social problems themselves. And in their turn, these distortions of religion arise when insufficient attention is given to the purifying and structuring role of reason within religion. It is a two-way process. Without the corrective supplied by religion, though, reason too can fall prey to distortions, as when it is manipulated by ideology, or applied in a partial way that fails to take full account of the dignity of the human person. Such misuse of reason, after all, was what gave rise to the slave trade in the first place and to many other social evils, not least the totalitarian ideologies of the twentieth century. This is why I would suggest that the world of reason and the world of faith – the world of secular rationality and the world of religious belief – need one another and should not be afraid to enter into a profound and ongoing dialogue, for the good of our civilization."
The full text of the speech can be read from the link at my name.

Peter: I read the hornbook of the Sharia (The Reliance of the Traveler). About 90% is sensible, pretty good stuff addressing most modern law subjects. It is less procedural. How about a Sharia based jurisprudence for the US? If that is unacceptable, why is a church based jurisprudence acceptable?

Right now, we already have a church based jurisprudence. It is from 1275, in utter failure, and totally lawless. To anyone with the slightest interest in science, it is deeply shocking and repulsive. The analysis of crime is copied from the analysis of mortal sin(mortal sins violate one of the Ten Commandments). Mortal sin has elements. Each element must have knowledge and consent. Sound familiar?

The word reason or reasonable is at the center of the law. Why "reason"? Not intelligent, advantageous, helpful, average, mainstream, logical, customary, or a 1000 other potential central words? The word reason refers to the ability to perceive God. That is the most reliable path to making moral decisions. Intelligence is subject to temptation after the Fall from Eden. It refers to reliance on the New Testament for moral judgment. Here is something worse. The center of the intellect of the Medieval church was in Paris. So ours are French ideas.

So, we are ruled by the mentality and morality of a small group of tribal types from Iraq of 3000 years ago, or Palestinians of 2000 years ago, or Euro trash of 800 years ago. Not cool for freedom loving Anglophiles like us.

As SC suggests, you seem peter to be arguing for ethics/religion to take the place of democratic practice in the development of law. In both the ancient and modern Arab worlds, peter, you would be an average citizens. In the modern west, however, we have committed ourselves to live by democratic principles not by claims of a higher power.

In addition to being out of step with western democratic ideals, peter, you also have a strange conception of ethics when you assert that the loss to the family of those murdered "is qualitatively no greater than that of the loss suffered by relatives of those executed (or locked up for life)." Even ignoring the possibility that relatives of a capital murderer bear some responsibility for not preventing their kin from destroying another's right to life, it is always they case that the family of murder victims lack the ability or opportunity to say good-bye in the ways that the relatives of those to be executed do. For that reason, and many others, I think it is deeply ethically misguided to assert there is an equivalence here AND I do not know of any organized religions that would make this assertion of equivalence.

I always appreciate your input, peter, but your philosophy of law is foreign to the American political and social system as I understand it.

Posted by: Doug B. | Sep 21, 2010 8:07:27 AM

Did people notice that the household of Edward I in Braveheart spoke French? When we say, the case book that contained nearly 100% of the law as practiced today was written by Henry of Bracton, where is Bracton? Today is called Brittany, a French province. Henry was not just a judge, but first of all, a French monk who studied with St. Thomas Aquinas at the Cathedral University in Paris.

Edward settled his debt with the Jews by killing them at one big meeting ("mortgage," get it?), setting his soldiers on their homes, and inventing the yellow Star of David patch to be worn by Jews who walked outside. He passed a law that lasted 400 years banning Jews from England. Of course, Jews did not suffer as much of the hundreds of 1000's of Irish, Scot, and Welsh that he slaughtered. He was also a little rough on gays, as depicted in the movie.

The lawyer has a portrait of this French monster in the House of Representatives gallery of great law givers. It is really offensive to any member of those groups.

"The question to answer is: should the law reflect exclusively the 'political' will of any particular executive power, or should it be constrained and reflective of a more substantial ethical dimension?"

This is what you don't get: BEFORE people select who they want to be their executive (or their lawmakers), they have ALREADY considered the "constraints" ethics imposes. You engage in a false dichotomy.

In other words, you continue to make the mistake many other abolitionists make, and with all respect, it is a mistake borne of arrogance. There are oodles of thoughtful, ethical people who have considered the moral constraints you mention. Their general conclusion, certainly in this country, is that the DP should be reserved for extreme cases (and thus "constrained"), but that to ABOLISH IT ALTOGETHER places unthinking, one-size-fits-all constraint over justice. By an overwhelming majority, that is something the (perfectly ethical) people of this country refuse to do.

It is simply not the case that any ethical or constrained thinking person MUST agree with you. John Stuart Mill didn't and neither did Abraham Lincoln or FDR.

Christian religion is quite skeptical of the DP but does not, to the best of my knowledge, seek its total abolition. (There may be a number of individual Christian clerics who take that stance, sure, just as there are individual clerics who disagree).

But even if I'm wrong about that, Christianity does not dictate what goes on in a secular society. Have you heard of Judaism? Islam? Have you heard that there are atheists and agnostics? Do those people not get a vote?

Doug Berman has it exactly right: "[Y]our philosophy of law is foreign to the American political and social system."

Posted by: Bill Otis | Sep 21, 2010 10:57:16 AM

Presumably, the defendant was in his late teens or at most 20 when he committed these murders.

It is now well-established that teenagers’ brains are different from adult brains, and that their decision-making processes are less developed. Consequently, even when they are guilty of criminal offenses, they are less culpable than their adult counterparts. The Supreme Court has identified three major areas in which juvenile defendants under 18 differ from adult defendants: (1) Juveniles demonstrate“[a] lack of maturity and an underdeveloped sense of responsibility” which “often result in impetuous and ill-considered actions and decisions.” (2) “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” (3) “[T]he character of a juvenile is not as well formed as that of an adult.” Roper v. Simmons, 543 U.S. 551, 569-70 (2005). While in Roper the Supreme Court was considering defendants under 18, much of the supporting literature applies equally to 18 through 21 year olds.

For instance, the amicus brief filed by a collection of professional medical and psychiatric groups notes that “psychosocial maturity is incomplete until age 19.” Roper, Brief of the American Medical Association , et al., at 7. Likewise, “response inhibition, emotional regulation, planning and organization” all not yet fully developed in 18 year olds. AMA Brief at 16. “One of the last areas of the brain to reach full maturity . . . is the part associated with regulating behavior, stifling impulses, assessing risks, and moral reasoning.” AMA Brief at 20. While a defendant's youth at the time of the offense does not excuse his actions, by any means, it does help to explain them, and suggests that a sentence focused on rehabilitation, rather than retribution, may be called for.

Posted by: sal | Sep 21, 2010 11:22:43 AM

sal --

Then why not 23? Or 25? It's just a matter of attenuation, right?

Law is a matter of line-drawing, and the line is drawn at 18.

It's simply preposterous to argue that someone over 18 doesn't know that beating four people to death in spite and rage is wrong.

When one is looking for excuses -- as you are -- anything will do. If the killer were 40, you'd STILL want to get him off the death penalty hook. A psychiatrist would be rented to testify that he had a previously undiscovered brain lesion. Or PTSD. Or this or that "syndrome," which is pseudomedical gobbledy-gook to try to bamboozle the jury.

It's no secret how the game gets played.

This killer is very fortunate the victims feel as they do and that the prosecutor listened to them as much as he did. Otherwise he'd be headed to the fate he has earned.

Posted by: Bill Otis | Sep 21, 2010 1:08:27 PM

You're an angry guy, Bill. I'm not "looking for excuses" -- to the contrary, you will notice, if you read carefully, that I specifically stated that the defendant's age was not an excuse for his actions. Furthermore, I would not, actually, make this argument on behalf of a 40-year old defendant. In fact, I did not make any argument. I simply raised a potentially relevant issue that was recently before the Supreme Court.

What you repeatedly fail to acknowledge here, and in many of your other comments on this site, is that every individual defendant is different and each individual case must be examined and considered carefully. Our system of criminal justice depends on it.

I also note that if anyone close to you suffered the very real impacts of a "syndrome," for example, PTSD -- as someone in my life does as a result of having served several tours in combat -- you would probably not consider it "pseudomedical gobbledy-gook."

Posted by: sal | Sep 21, 2010 3:18:58 PM

sal --

1. Whether you would use this particular argument or not, is it not the case that you would oppose the DP for the killer in this case (or any case) regardless of his age?

2. Pseudomedical goobledy-gook is the stock-in-trade of criminal defense these days. Since the defendant did the deed, what's left is some mental state defense/mitigation. Rather than admit the client is a thug, he has to be turned into a "patient." My guess is you've seen this nearly as often as I have.

Posted by: Bill Otis | Sep 21, 2010 3:55:39 PM

Doug - You are of course completely wrong ... the Supreme Court, whilst claiming for itself the role of arbiter of the nations morals, most certainly makes judgments based on ""evolving standards of decency". These standards are arrived at by various means, but the process may broadly be described as an "interface" of negotiation between parties ... be they pressures of actual trends on the ground, or the force of argument at court, or the examples of international law, etc. Whilst Justices Scalia and Thomas, above all others, will stoutly refute most such arguments, the interface is real and influential in making and reforming US law. It is therefore very much the responsibility of academia to ensure that students and others are aware of and open to the ongoing debate which must take place continuously in society and in the legal profession, of the right of processes and practices within the law, and of the law itself.
Pope Benedict has argued, as the Archbishop of Canterbury has argued (and doubtless other religious leaders also), for the right of dialog to give greater depth and breadth to the decision-making processes of government, and through them, of legislators. This interface, while weakened no doubt in recent years both in the US and in Europe, is still recognized as valid. You may not recognize the language I use in describing the interface, but it exists. Justice Breyer uses a very different language when he discusses his "Active Liberty", and studiously distances himself and the Court from the direct influences of particular religious input. But nonetheless, he acknowledges that most Americans still hold some belief or affiliation, and their representatives have a rightful part to play at the interface. At a professional level, the Social Sciences have always had a role in informing and interpreting the effects of law and legal practices. This too contributes to the moral and ethical debate at the interface. Craig Haney, a professor of psychology at the University of California, Santa Cruz, is one of course who makes frequent and effective contributions in this way.
In short, as Pope Benedict says, religions and religious leaders do not have a monopoly of view or understanding of moral and ethical matters. But it is right that their voice is heard and listened to respectfully, amongst others. You, as a teacher and expert in the field of sentencing law, are uniquely placed to ensure that healthy debate with society - and not just through the ballot box. I would expect your students actually to demand it of you. Democracy is deserving of no less.

classic Bill Otis rhetoric games. throws all sorts of inflammatory bs at the wall to see what sticks, and when he gets called on some of the indefensible stuff (i.e., referring to PTSD as "pseudomedical gobbledy-gook"), he issues a non-responsive attack on defendants and defense counsel generally, without ever acknowledging his indefensible statement...

another classic example would be if he (non)responded to this criticism by noting that my comment is anonymous and i lack the courage to sign my name, unlike him, etc.

Posted by: anon | Sep 24, 2010 6:42:53 PM

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